FIFTH AMENDMENT RIGHTS AND PRIVILEGES

D is a natural person - privilege applies

• Individual

• Sole proprietorship

The defendant was compelled to provide a testimonial communication - privilege applies

• oral testimony

• Act of producing a document

The evidence is self-incriminating - privilege applies

• could be used (or might lead to other evidence used to proecute the D)

THE PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION

• The Fifth Amendment’s privilege against compulsory self-incrimination, which applies to the states via the Fourteenth Amendment, provides that no person shall be compelled in a criminal case to testify against himself.

• A person means an individual.

• Artificial entities (e.g., corporations, partnerships) do not qualify as persons.

• This privilege applies to any proceeding—civil or criminal, formal or informal—if there is a reasonable possibility that the answers would incriminate the defendant in a future criminal proceeding.

• But it applies only to testimonial evidence.

• Nontestimonial physical evidence (e.g., blood, urine, breathalyzer samples) is not protected.

Waiver and Immunity

• A defendant waives this privilege by taking the stand and answering the prosecution’s questions. A witness waives it by disclosing self-incriminating information in response to a specific question.

• However, the prosecution may compel incriminating testimony if it has granted immunity (see table below). A grant of immunity precludes another U.S. jurisdiction from using the testimony to prosecute the defendant.

Granting Immunity to Override the Fifth Amendment Privilege - Use and derivative use immunity

• Prevents the use of the witness’s testimonial communications against that witness in a criminal proceeding

• The minimum grant of immunity required under the Fifth Amendment

Granting Immunity to Override the Fifth Amendment Privilege - Transaction immunity

• Prevents the prosecution of the witness for crimes related to the witness’s testimonial communications

• Blanket or total immunity

THE FIFTH AMENDMENT IN A POLICE INTERROGATION CONTEXT

Any incriminating statement obtained as a result of a custodial interrogation may not be used against a suspect at a subsequent trial unless the police informed the suspect of his Miranda rights.

Tips

• Consider the Fifth Amendment when there has been a confession, but remember that Miranda warnings are required only when an individual is subject to custodial interrogation.

• If the police have no intention of questioning the individual, or if the individual is not in police custody, then the Miranda warnings need not be given

Custodial Interrogation - Custody

is either a formal arrest or a restraint of freedom equivalent to an arrest. The key question is whether a reasonable person would believe that she could leave, so questioning at a police station is not automatically custodial.

Custodial Interrogation - Interrogation

includes questioning as well as words or actions that are reasonably likely to elicit an incriminating response. Voluntary statements are not protected. A statement is involuntary if, under the totality of the circumstances, it was coerced by the police. Note that deceit or fraud by the interrogators does not itself make a confession involuntary

Compliance - Content and timing:

Miranda warnings must be given before interrogation begins, and they must be given again if an interrogation is stopped for a long time and resumed. The warnings need not be verbatim, but they must inform the suspect:

• Of the right to remain silent

• That any statement can be used against the suspect in court

• Of the right to an attorney and

• That an attorney will be appointed if the suspect is indigent

Right to counsel

A suspect must make a specific, unambiguous statement asserting her desire to have counsel present. Once this right is invoked, all interrogation must stop unless:

• The suspect voluntarily initiates communication with police (including spontaneous statements) or

• There has been at least a 14-day break in custody and fresh Miranda warnings are given.

Right to silence:

A suspect must make a specific, unambiguous statement asserting her desire to remain silent. Mere silence is not enough. The interrogator must scrupulously honor this right if invoked. But if the suspect indicates a desire to speak, subsequent interrogation is lawful if the suspect is not coerced and Miranda warnings are given again.

Exceptions to Miranda Warnings

Miranda warnings are not required when:

• Public or officer safety is at risk

• Police are asking routine booking questions or

• Police are acting undercover.

Waiver

A suspect may waive Miranda rights.

• The burden is on the government to prove by a preponderance of the evidence that the waiver was made knowingly and voluntarily. Silence is insufficient proof of waiver

FRUITS OF A TAINTED CONFESSION

• Derivative physical evidence (e.g., a gun) obtained as a result of a non-Mirandized confession is admissible so long as the confession was not coerced.

• And a Miranda violation does not automatically require the suppression of incriminating statements made by the defendant after receiving Miranda warnings.

• However, a second confession may be suppressed if the circumstances indicate that the substance of Miranda has been drained away.